from the victory dept

Earlier this year, we wrote a bunch of posts on the Copyright Office's request for comment on changes needed to the DMCA's anti-circumvention exemption list. There were lots of interesting submissions, but one that caught my attention was a whole bunch of film association groups, most of them for documentarians, advocating that the anti-circumvention they enjoyed to be able to use clips from other films and content be expanded to include filmmakers generally. This would address the copyright industries' cynical attempt to route around Fair Use usage by filmmakers by simply locking up their content behind all kinds of DRM that, unless you're a documentarian, you can't circumvent. The MPAA, as you would expect, said that allowing for this would kick off "widespread hacking" of all the DVDs on the planet, while all it was really concerned about was the licensing agreements it was able to secure by filmmakers who didn't want to violate the DMCA to get the Fair Use clips they wanted.

Digital Millennium Copyright Act (DMCA) exemptions aren’t just for documentary filmmakers any more. The U.S. Copyright Office and Library of Congress last week broadened a DMCA exception to now allow more filmmakers to circumvent anti-copying technology and rip short video clips for purposes of commentary and criticism.

“This is huge for the independent film industry,” said Michael Donaldson, an attorney who argued for expanding the exemption before the Copyright Office, in a written statement. “The use of fair use material by narrative filmmakers has exponentially increased to the point where expanding the exemption to fiction films was absolutely necessary.”

What this means is that more filmmakers will now be able to simply rip clips from protected DVDs to use in their own creative works, as long as the purpose of the clip is used for parody or to demonstrate biographical or historically significant information. This opens up all kinds of uses, of course, but all of them will still be subject to being truly Fair Use cases. That, of course, is a defense, so you can expect lawsuits to be filed before we settle into some kind of a norm here.

Still, this is a good decision by the Copyright Office. The idea that the MPAA and others could lock up content that could otherwise be fairly used behind DRM obviously doesn't comport with the purpose of the law.

from the defeating-a-giant-means-chipping-away-at-random,-possibly-unrelated-toes dept

Crushing drug dealers and criminal cartels: that's the asset forfeiture narrative. The reality is something completely different. It's the government taking property from people with a minimum of due process, urged on by a set of perverse incentives. Law enforcement agencies directly profit from the stuff they take from people, so there's really no reason not to.

When the general public hears forfeiture is being used to target criminal cartels, they tend to think of piles of cash, luxury vehicles, sprawling mansions, and the occasional aircraft. In reality, it's whatever cash cops can find laying around (usually less than $1,000) and vehicles a couple of decades old that are someone's barely-reliable ride.

Whatever statistics can be obtained -- and it isn't much, given the secrecy cloaking these state-ordained seizures -- always tell the same story: 99% of civil asset forfeiture is penny ante bullshit. It's this way for several reasons. First, smaller forfeitures aren't worth fighting in court, so small ball seizures are almost guaranteed to end up in the hands of law enforcement. Second, it all adds up over the year. A bunch of small seizures turns into real money eventually. Third, cops aren't willing to let drug lords walk. But they'll take stuff from anyone they can imagine might be part of a cartel, even when it's someone busted carrying nothing more than a personal stash.

And that's if they even find contraband at all. The absence of criminal evidence seldom deters seizures, and forfeitures have been expanded to cover vehicles driven by impaired or uninsured drivers.

Altogether, there were 736 asset forfeiture proceedings in Michigan in 2017 during which someone lost property to the government despite never being charged with any crime; this happened 380 times in Wayne County. A state law passed in 2015 requires law enforcement agencies across Michigan to submit data about forfeiture to the Michigan State Police.

Jarrett Skorup of the Mackinac Center for Public Policy, who co-authored a recent report on civil forfeiture, said the data shows nearly all of those Wayne County seizures involved vehicles valued at less than $1,000. He said it’s likely that these forfeitures disproportionately affected low-income individuals, who are less able to afford an attorney or navigate the legal system to reclaim their property.

The report [PDF] doesn't break down the total value of vehicles seized, but the numbers bear out Skorup's claim. The state as a whole reported $13 million in net total proceeds from all property forfeited. $11 million of that was cash. There were 7,999 vehicles seized statewide. Simple division says that's only $250 per vehicle. State agencies also seized other property that wasn't vehicles or cash, further lowering the per vehicle estimate.

Now, there are a few unknown factors that may bring that number back up slightly. It's unclear whether this reflects proceeds after auctions, etc. that would result in a lower net total for the state due to differences in expected property value and its actual value after "disposal." This may raise the per vehicle value, but there's still a long way to go from the $250 baseline and a dollar amount that would suggest something other than what appears to be happening here: thousands of seizures of vehicles worth less than the legal costs that would be accrued fighting the forfeiture.

There's more disturbing data in the report beyond the apparent wholesale forfeiture of cars whose value barely exceeds the going rate for scrap. A vast majority of those targeted by forfeiture -- with or without accompanying criminal charges -- were caught with the lowest amounts needed to trigger criminal charges. 88% of cocaine-related seizures involved the less than 50 grams. 83% of marijuana-related seizures also involved the lowest amounts needed to charge someone. And so on down the chart of criminal charges.

The lowest-level busts make up the vast majority of all seizures. It makes sense that officers would encounter users far more often than dealers. What doesn't add up is the narrative: that forfeitures are essential to destroying drug cartels. All it's really doing is depriving people of property and disproportionately punishing the demand side of the drug problem.

Serious crimes barely register. There are thousands of drug-related forfeitures -- with more than 80% of those covering bare minimum possession. The list of serious crimes -- ranging from grand larceny to child molestation to home invasion -- makes up only 95 of the state's ~6,000 seizures. The only other big chunk (984 forfeitures) is related to prostitution charges, showing the state is willing to take away vehicles for engaging in consensual sexual transactions.

This abuse of a law enforcement tool has gotten the county sued. Multiple citizens are seeking to have the program found unconstitutional. Two of the plaintiffs listed in this story by the Detroit News have waited years for a hearing on seized vehicles, one of which is a 1998 Toyota Avalon, to give you some idea what kind of prime drug-dealing vehicles the county targets.

The small bright spot in all this is there's a bill seeking to institute a conviction requirement for forfeitures. If state agencies have to be able to prove their case beyond a reasonable doubt, they'll be far less likely to engage in specious seizures based on little more than the agency's desire to have more money/stuff. Unfortunately, the bill appears to be waiting for its Senate counterpart to arrive and it's been waiting almost six months at this point.

from the time-for-some-changes dept

Over the summer we wrote about the increase in employees at big tech companies leading internal protests against business decisions made by those companies -- mostly around providing tools to the government or military that might be used in ways that many people find to be immoral. It was interesting to see this play out (and stay tuned for next week's podcast, where this will be discussed). More recently, there have been similar protests from within Google over its plans to reenter the Chinese market with a government-approved version of its search engine.

Yesterday, thousands of Google employees took this to another level. Following a recent (horrific) NY Times piece on massive failures by Google management in dealing with sexual misconduct at the company, Google employees all over the world participated in a walkout protest over management's activity. They also put together what appears to be a fairly modest list of demands, including an end to forced arbitration over harassment and discrimination claims, further commitments to fight pay and opportunity inequality at the company, transparency on sexual harassment at the company, a better way for reporting sexual misconduct, an elevated role for a "Chief Diversity Officer," and adding an "Employee Representative" to the Board of Directors.

I have a bunch of thoughts on this -- some of which I may explore more deeply in future posts, but at a first pass, I think this kind of activism by employees is a very good thing. Remember, Silicon Valley has long promoted the idea that its workforce is much more closely aligned with management than traditional companies, in part because of the free flowing nature of stock options and grants. As someone who spent years studying traditional labor/management malfunctions, the more mutually aligned approach that Silicon Valley claimed to have had in the past was a huge part of its strength and a key reason why the industry as a whole has been so innovative. Unfortunately, in the past few years, it does seem that this alignment has diverged, and in too many cases, management has been pursuing growth and opportunities in ways that go against the interests and beliefs of the employees. There may be reasons for this, but they're not good ones.

While Silicon Valley has long had an antagonistic view towards traditional labor organizing and unions (which I think is the right call for a whole host of structural reasons), it's fascinating to watch employees at these companies gravitate toward these kinds of protest behaviors to make their voices heard.

As we've discussed for many years, the power of innovation in Silicon Valley is driven by its employees and their ability to continue to innovate and create wonderful new things -- and to take their brainpower and move to other companies. Perhaps it's no surprise that, as we've had a few companies become bigger and bigger over the past few years, there's a center of gravity that has allowed management and an employee base to lose the alignment of interests. It's an unfortunate trend and one that hopefully these actions can help correct.

On a related note, the idea of an employee representative on the board is a fascinating one. Other countries (most notably Germany) have done this under law (and we discussed a proposed law to do this in the US just a few months ago on our podcast). I think companies would be much better served in doing so, if only (again) to better align the incentives of the employees and the overall company, which should lead to better long term results.

My one quibble with the list of demands is with the focus on the "Chief Diversity Officer." It is not that I'm opposed to companies focusing on diversity as a goal -- I think that's actually especially valuable in a company that seeks to serve nearly the entire globe with services. But, it reminds me of the rush a decade ago for companies to create Chief Digital Officers. As I said back then, a Chief Digital Officer made it look like you treated "thinking digitally" as just another silo, rather than something the entire company had to understand at a gut level. The same is true of diversity. Having it be a "role" in the company perhaps might make sense as a forcing function to make sure that someone is making sure that the company is moving in the right direction, but to achieve true diversity within a company, you need everyone to understand, deeply, the value of diversity in helping to push companies forward, to build truly innovative products, and to understand how those products and services could potentially impact millions or billions of people (in both good and bad ways). So nothing against placing an emphasis on diversity, but creating a Chief Diversity Officer feels a bit too limiting, and creates a situation where it's too easy for people to pass the buck and assume that diversity is an issue for that role to focus on, rather than for everyone to focus on.

from the but-will-it-help? dept

As I've pointed out repeatedly, we're really really bad at regulating "privacy" in large part because most people don't understand privacy -- and it means different things to different people. And, so far, most attempts at regulating privacy have created massive negative consequences, while doing very little to actually protect privacy. The ones most making the news are the GDPR in the EU (though reaching well outside of the EU), which is a total mess and California's unmitigated disaster of a privacy bill that was passed in an insane rush to stop an even worse privacy law from being on the ballot. And, of course, all of this comes against the backdrop of various companies doing a horrifically bad job of protecting the public's private information.

Above, I mentioned that it's been unfair to argue that Wyden was a booster of Silicon Valley companies. If you look at his history, he has always been focused mainly on being an ally of the users of the internet. Many times, those two things align, but when they do not, Wyden has repeatedly taken the side of the users, not the companies. And that is the case here, for the most part. Over the last year, Wyden has been on a bit of a rampage in basically telling the companies that they've had decades to do the right thing in regards to protecting their own users, and they have failed to do so.

Reading the new bill in that context puts things into perspective. The key parts of the bill, as described in the one-pager are as follows:

Establish minimum privacy and cybersecurity standards.

Issue steep fines (up to 4% of annual revenue), on the first offense for companies and
10-20 year criminal penalties for senior executives.

Create a national Do Not Track system that lets consumers stop third-party companies
from tracking them on the web by sharing data, selling data, or targeting advertisements
based on their personal information. It permits companies to charge consumers who
want to use their products and services, but don’t want their information monetized.

Give consumers a way to review what personal information a company has about them,
learn with whom it has been shared or sold, and to challenge inaccuracies in it.

Hire 175 more staff to police the largely unregulated market for private data.

Require companies to assess the algorithms that process consumer data to examine
their impact on accuracy, fairness, bias, discrimination, privacy, and security.

A lot of the bill is really in giving the FTC more resources and power to go after companies for failing to protect the privacy of users. And, I think putting some level of pressure on companies to take these issues more seriously could really help.

I think there's a lot in the bill that is carefully thought out and worthwhile, but I still have a number of significant concerns. The headlines around this bill have focused on the fact that it includes potential jail time of 10 to 20 years for senior execs who sign off on annual "data protection reports" to the FTC, in which those reports "knowingly" misrepresent information (it also includes GDPR-esque fines of 4% of gross revenue, even for first time offenders). I do think there's value in creating real punishment for company execs that knowingly misrepresent information concerning the privacy of their users, but I do worry how much this might impact the willingness of good people -- especially potential chief privacy and chief information security officers -- to agree to take these jobs with large companies. While the "knowingly" part of the requirement is important, I can envision quite intense legal battles over the level of knowledge such execs had in signing off on these documents. Yes, this would get them to take those issues seriously and go over such documents carefully. But, I do worry that this could scare off many good people from taking these jobs.

Similarly, the fact that these massive fines apply to the very first offense could be seen as problematic as well. It's great to say that even one mistake is one too many, but is that realistic? It is not easy to seal off every possible vector of attack. There are always new attacks. And, as it stands right now, there are only a few companies who have the resources and ability to really harden their systems to this level -- and this bill could lock in those providers and leave out the ability of smaller companies to challenge them in the market (there is a limited safe harbor for smaller companies, but as soon as a company reaches a reasonable size, the rules apply to them).

I also do wonder about the "minimum privacy and cybersecurity standards" that the FTC will be authorized to detail. Again, on its face, this sounds like an okay idea, but there are a lot of devils in those details. Too often "standards" like this, if not properly constructed, could limit potential innovations or business models that wouldn't actually negatively impact people's privacy, but won't be allowed out of a fear for violating these standards.

While I am supportive of bringing back the concept of a Do Not Track system, I find the requirement for companies to "offer a paid version of their product or service, for which they can charge no more than they would have made by sharing the user's data" potentially a complete mess (the bill has a lot of conditions on this that might limit the problems, but it's not clear why this is necessary in the bill). Again, that's something that sounds nice in theory, but would require a pretty big shift for many companies -- which would mean a lot of new costs that it's unclear they can even attempt to recoup. It also has the potential of cutting off a number of new business models, as there are potential businesses where such a setup wouldn't even make any sense. Again, conceptually, this idea could make sense for companies, but requiring it could have significant consequences.

A final major concern: it does not appear that this bill would pre-empt state efforts, like California's giant mess of a privacy bill (and any other attempts by other states). That also seems like something any federal bill should include to avoid a patchwork of impossible to follow laws in every single state.

That's not to say there aren't parts of the bill that are worthwhile -- and the intent behind it is well meaning. Companies do need to clean up their act and recognize what a mess they've caused. I do like the idea of standardizing APIs to allow users to use other apps to access and process the information and data that companies hold on them. That could be tremendously useful in moving to a world where individuals can take back more control over their data. I also appreciate the specific point that the rules do not apply to media organizations, as we've already been dealing with the fallout from the GDPR where people are claiming the data protection rules there can prevent media organizations from even reporting on certain people.

But, in the end, I'd prefer that be done more by the companies themselves in recognizing that they're better off pushing control of the data out to the end users, rather than feeling the need to hoard it all themselves. I recognize that Wyden's view on this is basically "they had their chance, and they failed" and perhaps that's true. But I still worry about the unintended consequences from locking in some of these ideas.

At this point, the bill is still a "discussion draft" and it's not at all clear if it has any chance of moving forward. Hopefully, if it does, there can be significant changes made to the bill so that it is still designed to punish truly bad behavior (and incentive good behavior), but without making it difficult to impossible for good people to hold key positions, and without cutting off potentially useful innovations for end users. At this point, I'm not sure this bill does so, even if it's well-intentioned.

from the I-guess-he's-just-on-a-roll... dept

The DOJ is still waiting for accused Vault 7 leaker Joshua Shulte's trial to begin, but that's not stopping it from adding to the long list of charges he already faces. The former NSA/CIA operative's house was raided last year by the feds who were looking for evidence of Shulte's leak of CIA hacking tools to Wikileaks. It found some of that, but also found 10,000 child porn images in the 5+ terabytes of data seized.

The child porn alone will likely see Shulte put away for a long time if the prosecution can secure a conviction. Leaking top secret tools isn't likely to be greeted with a wrist slap -- not with the forever War on Leakers still in progress. For some reason, the government felt compelled to add copyright infringement to the list of charges after discovering a few pieces of pirated content on Shulte's personal server.

According to new court documents filed late Wednesday, October 31, US prosecutors plan to file three new charges against Joshua Schulte for allegedly leaking more classified data while in detention at the New York Metropolitan Correctional Center (MCC).

The filing [PDF] is quite the read. According to the allegations, Shulte had access to multiple smuggled cellphones and was using them to disseminate classified info to "third parties" outside the prison walls. It appears the info Shulte smuggled out of the prison came from classified documents released to him as part of his pre-trial discovery. The DOJ has now stripped him of access to classified documents, restricting him to unclassified info released by the FBI.

A flurry of paperwork and a search of Shulte's housing unit turned up a number of things, including a new form of encryption.

In or about early October 2018, the Government learned that Schulte was using one or more smuggled contraband cellphones to communicate clandestinely with third parties outside of the MCC. The Government and the FBI immediately commenced an investigation into Schulte’s conduct at the MCC. That investigation involved, among other things, the execution of six search warrants and the issuance of dozens of grand jury subpoenas and pen register orders. Pursuant to this legal process, in the weeks following the Government’s discovery of Schulte’s conduct at the MCC, the FBI has searched, among other things, the housing unit at the MCC in which Schulte was detained; multiple contraband cellphones (including at least one cellphone used by Schulte that is protected with significant encryption); approximately 13 email and social media accounts (including encrypted email accounts); and other electronic devices.

Given the FBI's recent history, it probably should be more careful when it discusses encryption. A few years of "going dark" narrative was upended by the agency itself, which revealed it could not competently count physical devices in its possession. The ever-inflating number of impenetrable devices was suddenly, and embarrassingly, converted to an asterisk on multiple FBI/DOJ webpages with footnotes stating an updated number would be provided at the agency's convenience.

Now, there's this: a DOJ prosecutor relaying the FBI's message about "significant" encryption -- whatever the hell that is -- to the federal judge presiding over the case. What makes this particular encryption "significant" isn't explained, but it does seem to make this encryption appear far more nefarious than the regular, insignificant encryption used by citizens not currently under federal indictment.

Three more charges are headed Shulte's way, all of them related to unlawful disclosure of classified documents. This isn't charge stacking -- not if the government's allegations are true -- but it could definitely nudge Shulte towards a plea deal that will save the DOJ a lot of time, energy, and arguments over presenting sensitive information in open court.

Then again, Shulte appears to be anything but cooperative. Leaking classified documents directly under the fed's nose while in supervised detention is a bold move that bears a lot of resemblance to a middle finger extended in the direction of the government. This may end up being a very fun trial to watch.

from the good-deals-on-cool-stuff dept

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from the don't-threaten-people dept

I have to admit that before yesterday, I'd never even heard of US Representative Jeff Fortenberry from Nebraska's 1st Congressional District (even though I visited his district while he was in office). However, boy am I hearing an awful lot about Rep. Jeff Fortenberry, and the one thing I will now always associate with Rep. Jeff Fortenberry is that he and his staff are so offended that anyone might call him "Fartenberry" that they'll ignore the 1st Amendment of the Constitution and threaten a professor for the grievous offense of liking a Facebook post with an image of a defaced campaign sign changing his name.

This story has a bit of everything. It starts with this, however. A Nebraska blog, Seeing Red Nebraska, posted the following to its Facebook page a couple weeks ago:

If, somehow, you cannot see that, it's a campaign sign for Rep. Jeff Fortenberry that has been somewhat crudely "altered" such that Fortenberry's face now has two giant googly eyes, his name has been changed to "Fartenberry" by adding a line to the "o" in his last name, and whatever the third item in the following list really is, was changed to: "Strong Families; Strong Communities; Strong ODOR."

A bit sophomoric, but, hey it happens.

What happened next, however... You see, University of Nebraska-Lincoln political science professor Ari Kohen "liked" that post on Facebook. And, apparently, Rep. Jeff Fortenberry's staff decided to scan through all the likes on that post, and decided that Kohen couldn't possibly get away with liking such a thing. So, Fortenberry's Chief of Staff, Dr. William "Reyn" Reynolds Archer III decided to call Kohen and chew him out and threaten him over the "like." Archer left a voicemail for Kohen, who was away at a conference. When Kohen didn't call him back quickly enough, Archer then emailed Kohen's department supervisor, Kohen's dean, and the chancellor of the university to complain about Kohen liking the image.

Again, let's just be clear what'a happening here (and it's going to get crazier). Someone else made some additions to the sign. Someone else took a photo. Someone else posted it to Facebook. The sole thing that Kohen did was click the "like" button because he found it amusing. And Fortenberry's chief of staff emailed Kohen's boss, Kohen's boss's boss and Kohen's boss's boss's boss to complain.

Kohen then called Archer back, and they ended up talking for 53 whole minutes, though the key 7 minutes gives you a good taste of what went down.

Amusingly, if you listen to the full call, it starts out with Archer specifically saying: "Look, I want to just be really clear that we support First Amendment." Then, he follows that up by saying this nonsense: "I think the thing that we're concerned about is liking vandalism which is against the law." The call goes on and just gets more and more insane (yes, dear readers, I listened to the whole 53 minutes for you). At one point, Archer tries to point to Jerry Seinfeld'scomments on college students as evidence that... um... something.

Humor has changed a lot over the last five years. What we thought was funny... and even Seinfeld is saying it's really difficult to be a comedian nowadays because things are misunderstood in the context of humor. Yes you can have a laugh about potty humor or about googly eyes, but the point is you're also secondarily liking and validating vandalism without... in a way that you may not have intended, but is a direct validation of vandalism.

The call goes on and on like this, with there being two main complaints, both of which are bullshit:

This is an endorsement of vandalism (and even potentially "violence") and...

Some others had highlighted Kohen's "like" and were using the fact that Kohen is a professor at UNL to further promote this image.

From there, Archer "threatens" to "put this out there":

And frankly we have a 1st amendment opportunity to put you out there in front of everybody and put it clearly as "why is a professor liking vandalism?" We can do that publicly. Would you like that? That's our 1st Amendment right too?

Kohen, who certainly seems to have a much better grasp of the optics here, points out to Archer how that might backfire:

Kohen: I think it'd be a terrible idea for you, if I'm being perfectly honest.

Archer: No. How so?

Kohen: Because the [disbelieving laugh] optics of this are terrible Reyn.

Archer then complains that he was calling to "come to an accommodation" and is frustrated that it seems "that is not possible with you." To which Kohen rightly asks (incredulously) what possible "accommodation" he would think is necessary or appropriate. To which Archer, hilariously replies:

For you to understand the optics of this, and you don't...

About those optics. Since this went public late yesterday, tons of publications have picked up this story. Here's a snapshot from Google News:

Now, perhaps I'm no communications expert, but I don't see any of those articles calling out Kohen for daring to "like" a silly sign defacement. They all seem to be reflecting pretty negatively on Fortenberry and his chief of staff.

Speaking of his chief of staff, Archer seems to have a bit of a history of being controversial himself. The first President Bush appointed him as the head of "Family Planning" at the Department of Health and Human Services, leading to a bunch of complaints about his lack of qualifications for the job:

"He has no credibility in the family planning community," said Judith M. DeSarno, executive director of the National Family Planning and Reproductive Health Association (NFPRHA), which represents clinics funded by Title X. "He is well-meaning, but he confuses empathy with the idea that he has to protect people from themselves." NFPRHA disinvited Archer to its last conference because so many of his views were "anathema" to its members, DeSarno said. Archer said he remains ready to work with them.

"I have nothing in common with the man, and no respect for him based on his political attitude," said Joan Hinneberry, who administers the Title X program in Colorado. "I have real problems with someone who accepts tax dollars to run a program he's basically trying to destroy."

"I advise people never to talk to him alone, because he twists what you say and uses it against you," said Betsy Render, executive director of the Wyoming Reproductive Health Council. "We have lots of problems in family planning, and the only thing he wanted to talk about {during a visit} was abortion."

Later, the younger Bush, George W., appointed Archer to be the Texas commissioner of health, where he made quite a bit of news for what was described as "nutty (and possibly racist) comments" that eventually resulted in Archer resigning in controversy. Indeed, when Fortenberry hired Archer in 2016, he had to defend the hiring over those comments. Some of those comments came from (wait for it...) a tape recorded conversation made by a woman who worked for Archer which was described as "a rambling, mostly one-sided conversation," in which Archer makes repeated nonsensical references to his employee's race, and talks about lynchings and privilege.

Anyway, back to the call. Kohen continues to ask why this conversation is even happening, and Archer keeps falsely stating that Kohen was supporting vandalism, and then makes various references to other professors getting negative publicity over their political views, with Kohen accurately pointing out that those were all very different situations. At that point, things get super bizarre again, as Archer references the widely debunked theory of "broken windows policing" as the reason he's calling. This makes absolutely no sense at all.

Archer: We all live in an ecosystem in which all these things hold together. Are you familiar with Felton Earls in broken windows at Harvard.

*pause*

Kohen: Uh... no, I'm not.

Archer: So you don't know anything about broken windows as a theory?

Kohen: (incredulous) The broken windows theory of policing?!?

Archer: Well, it's the idea that if you leave broken windows, it means you're going to let the festering of other things happen. You can't leave broken windows in a community without allowing the community to continue to believe it's appropriate to break windows and do other things. That's the point.

The conversation keeps going around in circles, and then Kohen correctly notes what this is: a violation of the First Amendment, in which a government official is clearly threatening and putting pressure on a constituent over his protected expression:

The suggestion seems to be that professors should watch what they say, whether they're in the classroom, or not in the classroom, professors should watch what they say. And one of the big concerns, as you know, with the First Amendment, is that chilling effect that this kind of discussion that we're having right now can have on speech.

Archer then responds in a way that suggests he has... a very, very confused understanding of the 1st Amendment.

I think there are limitations and problems created by both the left and the right around this issue. And I think that there should not be a chilling effect on your right to speak about ideas. But if you tell someone to go blow up a bomb, or you tell somebody to go vandalize, or you validate and say an inference that vandalism is a part of political discourse, by inference, you have to be careful about whether your are constraining yourself in the context of the 1st Amendment, in which... it ends when your fist hits my jaw, as you know.

We all know that this is a very complicated area. And we also know that it's important... It's foundational to this civilization without question. We couldn't survive without it. At the same time, the way we do it, also allows us to continue to do it. To be in this robust conversation with each other. So we're saying, and requesting that you look at your behavior and think about it as being an inference of supporting vandalism, which we don't think is appropriate political discourse.

So, just to be clear, if you're a government official telling someone else that clicking the "like" button (which courts have already said clearly are protected speech under the First Amendment) is "inappropriate public discourse," you are the one violating the First Amendment.

Either way, the call goes on and on and on, around and around for nearly an hour. Frankly, Kohen has the level of patience of a saint as the conversation continues and Archer's argument gets more and more ridiculous, and very carefully considers each and every wacky argument presented by Archer. Incredibly, Kohen tries, multiple times, to end the call, and Archer just keeps wanting it to go on, and pressing Kohen to somehow apologize for clicking the like button. Still, by the end the two end the call on a more friendly note and have a conversation about getting past political differences and improving government -- which is great. But... just the fact that the entire call came about over a like, and it involved a government official (1) complaining to multiple levels of bosses over a university professor and (2) further threatening to publicly shame that professor over his daring decision to "like" a silly joke on Facebook is insane.

from the do-not-pass-go,-do-not-collect-$200 dept

You might recall that AT&T recently defeated the DOJ's challenge to their $86 billion merger with Time Warner thanks to a comically narrow reading of the markets by U.S. District Court Judge Richard Leon. At no point in his 172-page ruling (which approved the deal without a single condition) did Leon show the faintest understanding that AT&T intends to use vertical integration synergistically with the death of net neutrality to dominate smaller competitors and squeeze more money from consumers in an ocean of creative new ways.

Throughout the case the DOJ tried to demonstrate (poorly) that a bigger AT&T has every incentive to behave badly. Admittedly those efforts were pretty feeble since the multi-decade steady lobbyist erosion of antitrust law left them trying to make the case within very narrow confines of legally-acceptable economic theory. The DOJ also shot itself in the foot by refusing to even mention AT&T's attacks on net neutrality, likely because it didn't want to highlight the fact that another arm of the government (the FCC) was actively harming the same consumers the DOJ claimed it was trying to protect.

"AT&T Inc.’s HBO and Cinemax programs were pulled from Dish Network Corp.’s satellite service after the companies failed to reach a new distribution agreement, setting up a real-life “Game of Thrones” between two of the biggest players in pay TV. It is the first time in HBO’s more than four-decade history that programming has been blocked at a distribution partner over a contract dispute, according to AT&T, which acquired the premium cable network as part of its June $85 billion acquisition of Time Warner.

We've noted for years how retransmission and carriage fee disputes in the cable industry have grown increasingly common and are only getting worse. Basically, when it comes time to sign a new deal paying for content, broadcasters generally demand huge rate hikes for the same channels. Cable operators then play hardball, and during negotiations one side or the other (usually broadcasters) pulls their content from the cable lineup. Consumers never see refunds for these feuds, even though these feuds have occasionally left them without access to channels they've already paid for, for months.

For weeks, consumers are bombarded with PR missives, new websites and on-screen warnings all trying to amplify public outrage and drive greater pressure for one side or the other to buckle. After a while, the two sides strike a new confidential deal, and the higher rates are then quickly passed on to consumers. In a letter to lawmakers last year, Dish Network argued that consumers have faced 750 such broadcaster blackouts since 2010, with the retransmission consent fees that broadcasters demand growing a whopping 27,400% between 2005 and 2016.

Of course Time Warner and HBO management traditionally took the high road to avoid these kinds of problems, something that appears to have suddenly and abruptly changed. HBO execs are implying to media outlets that this could all just be a press stunt by Dish to apply pressure on AT&T as it fights the DOJ's recent appeal. Even if that's the case, consumer groups and out-leveraged smaller cable ops have been pushing for years for updated regulations that ban companies from blacking out content while companies bicker over rates.

These demands are never really taken seriously in DC, as it's seen as too heavy handed of an intervention into negotiations between two companies. Ignored is that during these outages, consumers don't see refunds for content they paid for, and this consumer outrage itself is actively encouraged by both sides in a bid to apply pressure on the other end of the deal. While the FCC under Wheeler flirted with the idea of basic FCC rules putting this ridiculous tap dance to bed, there was simply no follow through.

That AT&T was going to use its newfound power to jack up prices for its TV competitors wasn't rocket science, especially if you've watched AT&T's particular flavor of "doing business" anytime over the last two decades.

The irony here is that AT&T even promised the DOJ that it would avoid these kinds of blackouts as a merger condition if the DOJ approved the deal. But the DOJ sued anyway claiming it was helping consumers (though Trump's disdain for CNN and Trump ally Rupert Murdoch's lobbying against the deal are seen as more likely justifications for a consumer-protection phobic Trump administration). But the DOJ's sloppy handling of the case and a terrible ruling by Leon left AT&T more powerful than ever, and consumers and competitors left more vulnerable than ever.

And that's before you even get to AT&T's plans for the post net neutrality world, currently on hold pending the outcome of next February's looming court battle.

Here in the States we have this bizarre tendency to either mindlessly approve megamergers with zero conditions, or conditions that companies are allowed to just tap dance around. The resulting mega-company then behaves badly, and everybody just stands around with a stupid look on their face. Rinse, wash, repeat.

from the shameful dept

As the EU continues to march towards wrecking the internet with a variety of dangerous proposals in the EU Copyright Directive, many are desperately trying to explain to policymakers there just how much damage they are going to do and asking them to take simple steps to prevent the worst possible outcomes. While most of the attention has been on the awful Article 13 upload filters, the Article 11 link/snippet tax is almost as bad.

Of course, to hear EU supporters of Article 11 explain things, such a brand new "publisher's right" is necessary to help save media organizations who have been undermined by the basic business model of the internet. This is already insanity (and, as we've pointed out, when both Germany and Spain passed similar laws, it harmed media sites, and did nothing to increase their revenue), but if that were the case, you'd expect most media organizations to be totally on board with the plan. That is not the case. A few of the very largest media sites are totally on board (with German publisher Axel Springer being the leading voice in support). But midsize and small publications recognize just how damaging this will be and they've now sent a letter to policymakers, who are working to finalize the Directive, calling out how the existing language puts them (the very entities policymakers claim this law will support) at great risk:

... we’ve noted with deep regret that both the European Council and the European Parliament are advocating for the creation of a new publishers’ right (Article 11 of the proposed Copyright Directive) instead of other alternatives, such as the presumption of rights, put forth by a wide range of stakeholders.

If the European institutions go ahead with the creation of such a right, we believe that it should incorporate key provisions that at least reduce some of the collateral damage to small and medium-sized publishers we expect, including with a view to transposition into national law.

Of particular concern is the idea that Article 11 might require licenses in order to index news content. That means even if a smaller site does not wish to be compensated by a news aggregator -- it has to set up a licensing scheme that requires payment. In effect, this outlaws Creative Commons and numerous business models and distribution strategies for the internet.

We would like to highlight a highly problematic provision adopted by the European Parliament: Article 11 (1) and Recital 32 introduce a remuneration principle which prohibits publishers from allowing indexing of their content online without remuneration. Recital 32 means that news aggregators, podcast aggregators and search engines would not be allowed to serve links with individual words and short extracts of news publisher content without a bespoke agreement stipulating payment – even when a news publisher wishes to be included.

We adamantly believe that any publisher’s right must give publishers the choice to consent to the sharing of their content online. Aggregators, search engines and other online services drive valuable traffic to publishers’ websites, particularly smaller or local ones; and this traffic referral creates huge opportunities to generate revenue through advertising.

Limiting publishers’ freedom in this way will result in detrimental consequences for us, as shown by a similar experience in Spain. The introduction of an unwaivable ancillary copyright in favor of publishers in Spain caused small publishers to lose as much as 15% of their web traffic. This is estimated to have cost the Spanish news publishing industry €10 million a year.

The key issue here is that if news aggregators -- who send sites plenty of traffic -- are required to set up licensing schemes and pay everyone they link to, it is most likely that they will only wish to negotiate with a few larger players, and simply avoid linking to smaller sites, if they continue linking at all. This will disproportionately benefit those large sites. And this would be true even if (as many predict) brand new collection society middlemen show up to collect and distribute such money.

We've already seen this in action. In the US, it's been widely reported how collection society ASCAP simply finds it impossible to track the number of plays of smaller, independent artists, and thus distributes their share to the most popular artists. It is literally taking from the smallest, independent artists, and giving their royalties to the wealthier and more successful ones. The same is likely true of any scheme for reimbursing news sites as well.

Hell, we're a news site here that is always open to new revenue streams, but I find it offensive that the government should step in to try to force other sites to pay us, and expect that even if it did apply to us, it would be such a huge bureaucratic clusterfuck that it wouldn't even be worth the effort to make sure we got paid.

So, really, the various policymakers in the EU should be required to answer a fairly simple question: if so many media sites are directly against this policy, and policymakers are claiming its necessary to help those very sites... then who are they really doing this for in the first place?